TaxTMI 
TaxTMI 
2021 (7) TMI 133
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....is related to the cost of acquisition of plant and machinery block of assets and thereby reducing the claim of depreciation by Rs. 96,19,618/- being 25% of Rs. 3,84,78,473/-. 3. The appellant craves leave to add, alter or amend the ground of appeal at a later stage." 3. Briefly stated, the facts of the case are that original assessment order was framed u/s. 143(3) of the Income tax Act, 1961 [hereinafter referred to as 'The Act' for short] vide order dated 22.12.2006 which is placed in the paper book at PDF page 116. Certain additions were made to the returned income of the assessee and the assessee preferred an appeal before the ld. CIT(A), who, vide order dated 20.03.2009, decided the appeal. 4. The order of the ld. CIT(A) is placed at PDF page 190 of the paper book. On 16.03.2009, the Assessing Officer assumed jurisdiction u/s. 148 of the Act by issuing notice. The following reasons were recorded for reopening the completed assessment: 5. Assessment order was passed on 25.11.2009. The order was framed u/s. 143(3) r.w.s 147 of the Act. 6. A perusal of the reasons recorded for reopening the assessment show that the Assessing Officer wants to review the....
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....he Act and reasons recorded for reopening as extracted elsewhere also show that there is no new tangible material evidence which has come to the notice of the Assessing Officer to reopen the completed assessment which was framed after due consideration of all facts and after due application of mind and after considering the relevant provisions of the Act. 10. A perusal of the facts show that all the facts are same as they were at the time of original assessment. 11. We have carefully perused the original assessment order qua the relevant documentary evidences. We are of the considered view that the Assessing Officer has considered the return of income, computation of income, balance sheet, profit and loss account and tax audit report and raised queries and reviewed the reply of the assessee. We find that from these very records, the Assessing Officer noted and formed a belief that income has escaped assessment which means that there was no new tangible material or information. 12. The relevant note to the balance sheet, as extracted hereinabove, shows that the Assessing Officer wants to re-examine/review the very same note for assumption of jurisdiction u/s. 148 of the Act....
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....or (ii) such income has been assessed at too low a rate; or (iii) such income has been made the subject of excessive relief under this Act; (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed. " 1.5 The above said explanation (iii) clearly states that where excess relief has been allowed, A.O. can take action under this section. In the decision of the Hon'ble Supreme Court in the case of ACIT V Rajesh Jhaveri Stock Brokers P. Ltd. (SC) reported in 291 ITR 501, the Hon'ble Court has clarified the explanation recently in section 147 and held that what is required is "reason to believe" but not established the fact of estimating of income. It was further stated that where material would normally prove escapement of income is not concerned at that stage. This is so because of formation of rule is within the term of subject of the A.O. This decision of Hon'ble Apex Court clarifies this issue that at the time of recording reasons, the A.O. should have reason to believe that there is under-assessment. So, excess relief has been allowed in the earlier assessment. Reliance is also placed on the....
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....ggered the issuance of notice of reassessment - no information or new facts which led the AO to believe that full disclosure had not been made. The impugned notice, the AO's order rejecting the objections, and the arguments of the Revenue nowhere indicate how the AO was impelled to seek re-opening of the assessee's case, as distinguished from the several other completed assessments. 12. For these reasons, this Court is of the opinion that the impugned reassessment notice cannot be sustained; it is hereby quashed. The writ petition and the pending application are allowed in the above terms without order as to costs." 18. Considering the facts of the case discussed hereinabove, in totality, in light of the judicial decisions discussed hereinabove, we are of the considered view that on the basis of the same assessment record as was filed by the assessee during the original assessment proceedings and also scrutinised by the Assessing Officer, before passing original assessment order u/s. 143(3) of the Act is the basis for seeking reopening of the assessment. 19. In our considered view, the reasoning given by the Assessing Officer for reopening assessment is nothi....
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....t means the actual cost of the asset to the assessee, reduced by the portion of the cost thereof, if any, as has been met directly or indirectly by any other person or authority. This has resulted in excess daim of depreciation of Rs.9619618/- (25% of 38478473).. On perusal of P & L account and the computation of income it is seen that the assessee had debited certain expenditure, which had been disallowed. Out of Space Segment and leasing charges an amount of Rs.5,59,69,937/- had been capitalized u/s. 36ABB of the LT. Act and amortized it for a period of 12 years. Similarly entire DOT License fees of Rs.3,57,42.981/- had also been capitalized and proposed to be written off over a period of 12 years, The deduction allowable during the year in respect of Space Segment charges would be Rs.46,64,161/- and in respect of DOT License fees would be Rs.29,78,382/-. As against this the deduction allowed were Rs.50,88,176/- and Rs.32,49,362/- respectively. This has resulted in excess allowance of deduction of Rs.6,94,795/-. Along with the Space Segment & Leasing charges and DOT License fees, the assessee had also debited Installation ad maintenanc....